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Giglio v. United States, 405 U.S. 150 (1972), when Government did
not know about or possess non-disclosed information). Gadsen contends that the Government knew Sherman made the notes, and therefore, the notes were in the constructive possession of the United
States for purposes of the Act. We must decide whether the notes at
issue, though never in the possession or control of the Government
and which never have been found, were nonetheless in the possession
of the United States within the meaning of the Act.
We reject Sherman's contention that the Government possessed the
notes because it knew that at one time Sherman had them in his former jail cell. Sherman's notes were never in the Government's possession, and thus, were not materials that the Government had a duty
to make available. No Government agent ever read, saw, or touched
these notes. Further, the Government made every reasonable and diligent effort to locate and obtain the notes, and Gadsen concedes the
Government did not act in bad faith. "Clearly the government cannot
be required to produce that which it does not control and never possessed or inspected." United States v. Canniff, 521 F.2d 565, 573 (2d
Cir. 1975). See also United States v. Cagnina , 697 F.2d 915, 922
(11th Cir. 1983) (noting that the Jencks Act did not apply because
grand jury material was not "in the possession of a federal prosecutorial agency"); United States v. Trevino, 556 F.2d 1265, 1271 (5th
Cir. 1977) (holding that a presentence report in the control of probation officer and not in the hands of the federal prosecutor is not subject to Jencks Act production). Accordingly, we reject Gadsen's
Jencks Act claim.
We also reject Gadsen's claim that the sentencing judge incorrectly
sentenced him as a de facto career offender. A defendant is a career
offender if he is at least 18 years old at the time of the current offense,
the current offense is a crime of violence or a controlled substance
offense, and he has two prior felony convictions for either a crime of
violence or a controlled substance offense. See U.S. Sentencing
Guidelines Manual 4B1.1 (1997). At Gadsen's first sentencing
hearing, the district court determined that Gadsen was not a career
offender because the robberies for which he was convicted on April
13, 1987, were related.2 However, the court continued the sentencing
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2 See USSG 4A1.2 (requiring related offenses to be treated as a "single offense" under the guidelines).
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